Flores amicus brief

[BRANT, JOANNE]

While mired in bluebook avoidance, I browsed the amicus briefs
submitted in Flores, and was struck by an argument made by the
National Council for Historic Preservation, in conjunction w/ atty's
from O'Melveny & Myers.  They argue that RFRA doesn't apply, and
thus that the issue of RFRA's constitutionality need not be decided.

Their argument is that the actions of the zoning board do not place
a substantial burden on either the Archbishop or the church members,
since no one is coerced in their exercise of beliefs or asked to choose
between their religion and receiving government  benefits.  In effect, they
say that the exercise of the petitioner's beliefs has been inconvenienced
(since all members cannot worship simultaneously) and possibly made
more expensive, neither of which is sufficient to demonstrate a substantial
burden.

They rely on on the Jimmy Swaggart case, Hernandez and the 6th Circuit
case involving the City of Lakewood and the Jehovah's Witnesses.  They
also make some nice arguments about why the Court can decide this
issue, although it was not presented in the cert. petition or argued
below.

Comments?  Reactions?  Do any dinner attendees wish to change
their votes?

Joanne Brant
Joanne C. Brant
Voice: (419) 772-2228
Associate Professor of Law                                              Fax:     (419) 772-1875
Ohio Northern University College of Law                                 E-mail: j-brant at onu.edu